Children Deserve Laws That Protect Them From Online Pedophiles, Not Laws, As Written, That Serve to Invite Them In
The Massachusetts Supreme Judicial Court recently reversed four indictments of Matt H. Zubiel for an attempt to disseminate matter harmful to a minor, under M.G. L. c. 272, § 28, and as defined in M.G. L. c. 272, § 31. Each indictment was based on Internet conversations between Zubiel and an undercover police officer on different days.
Deputy Sheriff Melissa Marino, a member of the "high-tech evidence analysis team" in the Plymouth County sheriff's department, conducted undercover investigations of crimes, including child pornography and child enticement. Marino created an undercover screen name, "Melissa QT 1995 and set up a Yahoo profile describing herself as "Meliss Smith" from the South Shore, age thirteen, and in the eighth grade. Her profile invited others to "PM" her (a form of instant messaging) if they wanted to send her a "private message."
On February 8, 2006, Zubiel with a screen name of "Ilikesports04," said, "Hi, how are you?" Marino informed Zubiel she was thirteen years old. He indicated he was age twenty-five. Their first online chat lasted forty-two minutes with Zubiel asking Marino for a photograph. She emailed him photographs of herself when she was thirteen years old. They discussed where each lived and they gave physical descriptions of themselves. Zubiel asked Marino, "[You] ever fool around with boys?" and other questions regarding what she had done with boys, how old the boys were, and additional details about those events.
A second online conversation occurred on February 13, 2006. Zubiel brought up several intimate topics asking questions about her physical appearance and her sexual experience and requested she send him a nude photograph of herself. Zubiel also asked if she was a police officer, acknowledging that they could get in trouble for what they talked about.
The next day, February 14, 2006, Zubiel e-mailed Marino a photograph of himself. Again, they discussed sexual topics online and Marino told Zubiel her mother would be working that weekend and she would be home alone. Zubiel questioned Marino further on her sexual history, telling her he would like to visit and “teach [her] everything."
On February 15, 2006, they had an online conversation regarding Zubiel's potential visit. They also spoke on the telephone because Zubiel wanted to make sure Marino was not a police officer. Again they discussed sexual topics, and Zubiel said, "I will show you the right way."
The final online conversation occurred two day later on February 17, 2006. Afterwards, Marino telephoned Zubiel (upon his request) and Zubiel said he would visit her the next day. Marino gave him an apartment complex address in Marshfield. The next day, Zubiel telephoned Marino for directions as he was entering Marshfield. Zubiel arrived, began walking toward the apartment building, and was arrested.
Following his arrest, Zubiel reportedly admitted the following: his "screen name" was "Ilikesports04,” he had conducted all of the online conversation with Marino, "it was a possibility that he would have sex with this girl if -- if, indeed, she was a real girl, and that the thought was there for him to have sex with this minor." Zubiel gave the police permission to seize his computer and a forensic examination revealed searches for Marshfield High School, directions to the apartment complex, the profile page of "Melissa QT 1995," the photographs that Marino and Zubiel sent to each other, as well as portions of the online conversations.
So why did the Massachusetts Supreme Judicial Court reverse the indictments? Because online electronically transmitted conversations are not explicitly included under the law’s definitions and the court wasn’t going to update the definitions for the Legislature. Under the law, there are four broad categories of criminally disseminated matter that are covered: 1) any handwritten or printed material; 2) any visual representation; 3) any live performance; and 4) any sound recording. The Court found none of these categories applied in the present case. In sum, this case comes down to a matter of words—words the Legislature should quickly correct.
The Court states, “If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of "[m]atter" […], it is for the Legislature, not the court, to do so.” A footnote indicates the Legislature considered amending the law in 2000 to include computer-generated writing, but it has not acted. The court’s tone here suggests that it’s time for the Legislature to take action. At least, I hope that is the message received.
The Legislature should enact enforceable child privacy protection laws quickly. Updated laws are necessary to combat the growing threats dangerously lurking online. Our advancing Information Age, with its evolving communication mediums, requires modern laws that protect children from online sexual predators. Until then, the existing outdated and technologically silent laws only serve to invite these same predators in, and not guard against them.
See Commonwealth vs. Matt H. Zubiel, Slip Opinion, SJC Docket No.: SJC-10454
